1. Child Abuse and Neglect--motion to dismiss petition--
properly denied
The trial court properly denied respondent's motion to
dismiss a petition alleging that her children were neglected
where one child, Sarah, had been left alone for about 3 ½ hours
at about age 8 as a form of discipline; Sarah was found to have a
cut on her lip and bruising on her face; respondent's fiancee,
Rush, had spanked Sarah at church when she misbehaved and had
grabbed and hit Sarah's face when they arrived home; Rush had
punched holes in the walls and had once cracked the car
windshield with his fist while the children were in the vehicle;
respondent was completely uncooperative with social services; the
other child, Isaac, had a wound on his lip which respondent
insisted was a cold sore but which was later determined to be an
infected cut; and respondent herself had a black eye.
2. Appeal and Error--plain error--not extended beyond criminal
context
There was no plain error in the court's admission of certain
hearsay statements in a juvenile neglect proceeding where it
could not be determined whether the court did, in fact, rely upon
the hearsay statements in reaching its legal conclusion.
Furthermore, there was no reason upon this record to reconsider
the extension of the plain error doctrine beyond the criminal
context.
3. Child Abuse and Neglect--findings--insufficient
The Court of Appeals was unable to conduct a proper review
of a trial court's findings of neglect where the “findings”
simply recited the evidence and did not resolve the numerous
disputed issues; the basis for the court's determination of
neglect was not clear from the record; it could not be determined
whether the court's order was defective in failing to find
impairment or a substantial risk of impairment; and there were
small but significant inaccuracies in the findings. The case was
remanded for new findings, but no additional evidence.
Onslow County Department of Social Services, by Ed Blackwell,for petitioner-appellee.
McNeil & Gilbert, by Joseph B. Gilbert, for respondent-
appellant.
McNamara & Smith, P.L.L.C., by Lynn Smith, for Guardian ad
Litem.
FULLER, Judge.
Christine Gleisner (respondent), the mother of the two
juveniles in question (Sarah and Isaac), appeals from the 17 May
1999 order of the trial court finding both juveniles neglected.
For the reasons set forth herein we remand.
The Onslow County Department of Social Services (petitioner)
first investigated the family on 2 June 1997 after receiving a
report that Sarah had been left at home unattended. Stacy Specht,
a social worker employed by petitioner, went to the family's
trailer home that Sunday afternoon and found Sarah, approximately
eight years old at the time, alone in the trailer. Conflicting
testimony was presented as to how long Sarah had been left alone.
Specht testified that Sarah had been left alone for three and a
half hours. Respondent testified that Sarah had only been left
alone for two and a half hours. Conflicting testimony was also
presented regarding Sarah's physical appearance. Specht testified
that Sarah had a cut on her lip and bruises on her face, while
respondent testified that Sarah had a small cut but no bruises.
Conflicting testimony was presented as to the cause of Sarah's
physical appearance. Specht testified that Sarah told her that
respondent's fiancée, Lonnie Rush, had slapped Sarah in the face.
Although this testimony was clearly hearsay, respondent did notobject to its admission. Specht also testified without objection
that Rush admitted to her that he had spanked Sarah at church that
morning when she had misbehaved, and that after he brought Sarah
home, he grabbed her face and hit her face. Respondent, on the
other hand, testified that the trailer door had swung open in the
wind and had hit Sarah in the face when she returned home from
church. Respondent further testified that Rush had never hit
Sarah. Rush testified that Sarah had been hit in the face by the
trailer door, and that he did not hit Sarah. He also testified
that although he had placed his hand over Sarah's mouth at church
to get her to stop screaming, he did not believe this could have
caused any bruising.
The following day, petitioner continued the investigation by
sending Robin Grantham to the family's home. Grantham did not find
the family at home, but learned that Sarah had been placed
overnight with a neighbor. According to Grantham's testimony, she
interviewed Sarah at the neighbor's home and observed three bruises
on her right cheek and a split lip. Grantham testified that Sarah
told her that Rush had hit her as discipline for disobeying him.
This statement was objected to as hearsay, and the trial court
sustained the objection. However, the trial court admitted the
statement for the limited purpose of explaining the continued
investigation by petitioner.
Grantham testified that when she confronted respondent with
Sarah's statement about Rush hitting her, respondent told Grantham
that Sarah had been hit in the face by the trailer door when it
blew open in the wind, and respondent denied that Rush had hitSarah. Grantham also interviewed Rush on this visit. Grantham
testified without objection that Rush admitted that he had punched
holes in the walls, and that he had once cracked the car windshield
with his fist while the children were in the vehicle. Respondent
acknowledged at the hearing that Rush once lost his temper in the
car and hit the windshield. Grantham testified that she also
interviewed several neighbors on this visit who expressed concern
that both children were often left alone all day and were allowed
to play unsupervised across the street. This hearsay evidence was
not objected to by respondent. Grantham also testified that she
found respondent to be completely uncooperative. Respondent
testified that Grantham threatened to have her children taken away
if respondent did not cooperate.
Approximately nine months later, on 7 March 1998, Specht
investigated a report that Isaac had a cut lip. During this second
investigation, Specht went to the home and saw that Isaac did, in
fact, have a wound on his upper lip. Respondent told Specht that
the wound was a cold sore. A subsequent medical examination showed
that the wound was a cut that had become infected and not a cold
sore. Conflicting evidence was presented as to the cause of the
cut on Isaac's lip. Specht testified without objection that once
Isaac and Sarah were placed in petitioner's custody, Isaac told
Specht that Rush had hit him five times in the face as a form of
discipline, and that Sarah similarly told Specht that Isaac's cut
lip was a result of Rush hitting Isaac. Respondent testified that
she and Rush have never hit either child other than spanking them.
Specht also testified that respondent had a blackened eye atthe time of the second investigation. Conflicting evid
ence was
presented regarding the cause of respondent's blackened eye.
Specht testified that respondent told her that she had a blackened
eye because she had been wrestling with Isaac and he had kicked her
accidentally. Respondent testified that Rush has never hit her.
However, Specht testified without objection that once Isaac was
placed in petitioner's custody, Isaac told Specht that he had not
been wrestling with his mother and had not kicked her.
On the same day as the second investigation, 7 March 1998,
petitioner filed a petition alleging neglect with regard to both
juveniles, and alleging abuse with regard to Isaac, pursuant to
N.C.G.S. § 7A-517 (1996) (repealed effective 1 July 1999, 1998 N.C.
Sess. Laws ch. 202, § 5). Following an adjudicatory hearing, the
trial court concluded that Isaac was not abused, but found that
both children were neglected. The court ordered physical placement
of Isaac with his maternal great aunt and uncle, with petitioner
retaining legal custody, and further ordered physical and legal
custody of Sarah to remain with petitioner for future placement.
On appeal, respondent raises three assignments of error.
[1]Respondent first contends the trial court erred in denying
her motion to dismiss at the close of petitioner's evidence. Upon
a motion to dismiss, the court must view the evidence in the light
most favorable to the petitioner, giving the petitioner the benefit
of any inference. In re Cusson, 43 N.C. App. 333, 335, 258 S.E.2d
858, 860 (1979). The test is whether there is substantial evidence
to support petitioner's allegations. Id. In the instant case, the
petition alleges that both children are neglected juveniles. A“neglected juvenile” is defined as “[a] juvenile who does not
receive proper care, supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or who has been
abandoned; or who is not provided necessary medical care; or who is
not provided necessary remedial care; or who lives in an
environment injurious to the juvenile's welfare.” G.S. § 7A-
517(21). In the instant case, the evidence presented by
petitioner, taken in the light most favorable to petitioner,
amounts to the following: (1) that Sarah had been left alone, at
approximately eight years of age, for approximately three and a
half hours by respondent as a form of discipline; (2) that Sarah
was found to have a cut on her lip and bruising on her face; (3)
that Rush had spanked Sarah at church when she misbehaved, and had
grabbed her face and hit her face once they arrived home; (4) that
Rush had punched holes in the walls, and that he had once cracked
the car windshield with his fist while the children were in the
vehicle; (5) that respondent was completely uncooperative with
petitioner; (6) that Isaac had a wound on his upper lip which
respondent insisted was a cold sore but which was later determined
to be an infected cut; and (7) that respondent had a blackened eye.
We believe petitioner offered substantial evidence of neglect, and
that this evidence was sufficient to withstand the motion to
dismiss at the close of petitioner's evidence. Thus, the trial
court properly denied respondent's motion to dismiss, and this
assignment of error is overruled.
[2]Respondent also contends the trial court's reliance on
certain hearsay statements, admitted at the hearing withoutobjection, constitutes plain error. A “plain error” is a
fundamental error that is so prejudicial as to result in “a
miscarriage of justice or in the denial to appellant of a fair
trial.” State v. Holloway, 82 N.C. App. 586, 586-87, 347 S.E.2d
72, 73 (1986) (citations omitted). A plain error “justifies relief
on appeal though not objected to in the trial court.” Id. at 586,
347 S.E.2d at 73. Respondent acknowledges that this Court has held
that the “plain error” rule is intended to apply only in criminal
cases, see Wachovia Bank v. Guthrie, 67 N.C. App. 622, 626, 313
S.E.2d 603, 606, disc. review denied, 311 N.C. 407, 319 S.E.2d 280,
cert. denied, 312 N.C. 90, 321 S.E.2d 909 (1984), but nonetheless
asks us to hold that the doctrine should be applied in this civil
case in order to prevent manifest injustice. We decline to do so.
In the first place, we are unable to discern from a review of the
trial court's order whether or not the trial court did, in fact,
rely upon any of the hearsay statements in reaching its legal
conclusion. Furthermore, even if it were evident that the trial
court had relied upon the hearsay statements, this Court has
previously declined to extend the plain error doctrine to child
custody cases. Raynor v. Odom, 124 N.C. App. 724, 732, 478 S.E.2d
655, 660 (1996). Upon this record, we perceive no reason to
reconsider whether the plain error doctrine should be extended
beyond the criminal context. This assignment of error is
overruled.
[3]Respondent lastly argues that the evidence was
insufficient to support the trial court's conclusion that bothSarah and Isaac are neglected. A proper review of a trial court's
finding of neglect entails a determination of (1) whether the
findings of fact are supported by “clear and convincing evidence,”
N.C.G.S. § 7A-635 (1996) (repealed effective 1 July 1999, 1998 N.C.
Sess. Laws ch. 202, § 5), and (2) whether the legal conclusions are
supported by the findings of fact, see In re Hughes, 74 N.C. App.
751, 759, 330 S.E.2d 213, 219 (1985). However, in the case sub
judice, we are unable to conduct a proper review for the following
reasons.
First, the “factual findings” in the trial court's order are
not actually factual findings at all. For example, the third
factual finding states: “Isaac told Ms. Specht that the mother's
live-in boyfriend, Lonnie Rush, hit him five times in the mouth.”
However, the sixth factual finding states: “While [respondent]
acknowledged that the March 1998 injuries on Isaac did exist, she
did not know of any physical violence which could have produced
such an injury.” These findings are simply a recitation of the
evidence presented at trial, rather than ultimate findings of fact.
In a nonjury trial, it is the duty of the trial judge to consider
and weigh all of the competent evidence, and to determine the
credibility of the witnesses and the weight to be given their
testimony. See Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d
29, 33 (1968). If different inferences may be drawn from the
evidence, the trial judge must determine which inferences shall be
drawn and which shall be rejected. See id. Where there is
directly conflicting evidence on key issues, it is especiallycrucial that the trial court make its own determination as to what
pertinent facts are actually established by the evidence, rather
than merely reciting what the evidence may tend to show. See Davis
v. Davis, 11 N.C. App. 115, 117, 180 S.E.2d 374, 375 (1971). Here,
the trial court failed to make ultimate findings of fact resolving
the numerous disputed issues.
The second reason we are unable to conduct a proper review is
that it is unclear from the record on what basis the trial court
determined that Sarah is neglected. The trial court's order states
that Isaac was found to be neglected because he lives in an
injurious environment, and that Sarah was found to be neglected
“based on the incident in March.” In the first place, although
these are clearly legal conclusions, they are designated factual
findings. More importantly, although the court found Sarah to be
neglected “based on the incident in March,” the incident involving
Sarah being left at home occurred in June of 1997, while the
incident in March of 1998 involved Isaac's cut lip and did not
involve Sarah directly in any way. This vague and apparently
inaccurate reference to “the incident in March” as the basis for
the court's determination that Sarah is neglected impedes our
ability to determine whether the trial court's conclusions are
supported by the findings.
Furthermore, we have consistently held that where neglect is
based on a failure to receive proper care, supervision, or
discipline, it must also be established that there is “some
physical, mental, or emotional impairment of the juvenile or a
substantial risk of such impairment as a consequence of the failureto provide 'proper care, supervision, or discipline.'” In re
Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)
(quoting G.S. § 7A-517(21)). Thus, if the trial court's
determination that Sarah is neglected was based on the conclusion
that she has not received proper care, supervision, or discipline,
the trial court must also reach the legal conclusion that Sarah has
suffered some impairment as a result, or that there is a
substantial risk that she will suffer some impairment as a result.
However, we are unable to discern on what basis Sarah was found to
be neglected, and we are therefore unable to determine whether the
trial court's order is defective for failing to find impairment or
a substantial risk of impairment.
Finally, there are small but significant inaccuracies that
appear in the findings. For example, the second finding of fact
states: “Lonnie Rush advised Ms. Grantham at the time that he had
been angry and had placed his hand over Sarah's mouth, but did not
intend to injure her.” In fact, Rush had spoken to Specht about
this conduct, not Grantham. This discrepancy is significant
because, contrary to Rush's testimony, Specht testified that Rush
“admitted to grabbing [Sarah's] face and hitting her face.” If the
court believed that Rush discussed this incident with Grantham,
rather than Specht, the court may well have overlooked Specht's
conflicting testimony on the matter.
For the foregoing reasons, we remand the case to the trial
court with instructions to make ultimate findings of fact based on
the evidence and to enter clear and specific conclusions of law
based on the findings of fact. We further instruct the trial courtnot to take any additional evidence in the case.
Remanded.
Judges GREENE and WYNN concur.
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